The worker who had been employed at Alinta's Port Augusta plant in South Australia returned the two positive tests in August. He admitted taking amphetamines 36 hours earlier.
Those positive tests prompted the company to stand him down.
Twelve days later the worker walked into a meeting with his Alinta bosses with a Construction, Forestry, Mining and Energy official but declined to provide any further information beyond admitting to using amphetamines.
When an Alinta representative started reading a pre-prepared dismissal letter, the worker blurted out that he resigned.
The Alinta manager suspended the meeting to allow the worker to confer with his union representatives.
The worker returned to sign the resignation letter.
However, the worker then filed an unfair dismissal claim, arguing that he felt he had no choice but to resign as the CFMEU representative had told him before the meeting that he would likely be sacked and therefore lose his termination entitlements.
"I had no job, I had no money, it did look like a better opportunity to resign and a clean slate on my name so I could obtain more work ... so especially, in my books, I had no choice but to resign," the worker told FWC senior deputy president Matthew O'Callaghan.
However, O'Callaghan said Alinta had not engaged in conduct intended to bring, or having the probable effect of bringing, the worker's termination to an end.
Indeed, Alinta said it would only decide on the appropriate disciplinary action once it had heard from the worker at the meeting with the union official.
"I have concluded that Alinta Energy provided advice to [the CFMEU official] about the likely outcome of the matter in the course of the investigation process, but, clearly reserved the capacity to adopt a final position relative to [the employee] depending on the advice which he had the opportunity to provide at the commencement of the meeting on September 3 2014," O'Callaghan said.
"It would be inherently unfair to conclude that a reasonable and fair investigation process represented a course of action intended to force an employee to resign simply because, in this circumstance, the employee had no excuse for their significant misconduct."
O'Callaghan said the worker had "resigned in order to protect termination payments that would otherwise not be available to him given that he agreed that he had used drugs, failed the drug test and not provided any mitigating circumstances".
He added that even if he was wrong in this conclusion, the worker's dismissal was not unfair.
O'Callaghan concluded that Alinta was entitled to maintain a zero tolerance approach to drugs and alcohol in the workplace and had properly communicated its policy to the workforce.
"I am satisfied that, given the nature of its business as a power generator, together with the equipment used and work functions undertaken by employees such [the worker], a zero tolerance approach to drug and alcohol use in the workplace is both reasonable and required," he said.
O'Callaghan said he was satisfied Alinta's drug and alcohol policy requirements were clearly set out and that appropriate steps were made to ensure the worker was aware of requirements in that respect.
"I am satisfied that Alinta Energy took appropriate steps to implement that drug and alcohol testing regime and that it acted to properly and fairly in [the worker's] circumstances following the ‘non-negative' test results," he said.
